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2011 DIGILAW 641 (RAJ)

Rajendra Kumar v. Parasram

2011-03-28

S.S.KOTHARI

body2011
Hon'ble KOTHARI, J.—The plaintiff (respondent) filed a suit against the defendants (appellants) for ejectment of Shop No.46 situated in Jawahar Market, Kota and arrear of rents alleging that he purchased it on 04.06.1991 through a registered sale deed. At that time, Ratan Lal, the father of the defendants, was a tenant in the shop on a monthly rent of Rs.250/-. The plaintiff and erstwhile owner of the shop, Bishan Lal, informed Ratan Lal that the shop has been sold to the plaintiff and he has become the owner of the shop. Even thereafter Ratan Lal did not pay the rent of the shop to the plaintiff. After the death of Ratan Lal, the defendants are in possession of the shop. The defendants have committed default by not paying rent since June 1991. The plaintiff is an educated unemployed young man and the said shop is needed by him for starting a readymade garment business. He has no other shop for conducting business. Thus, the shop is a bonafide and reasonable need of the plaintiff for his own personal use. He sent registered notices for vacating the shop to the defendants through his counsel but they were returned with the endorsements of refusal. The defendants have other shops situated in Retwali and Shivpura available to them. The plaintiff will suffer greater hardship if the shop is not vacated. Hence, the plaintiff prayed that the decree for ejectment of the suit shop along with Rs.2250/- as arrears of rent may be passed against the defendants. The defendants, in their written statement, admitted tenancy but denied that they have committed default in payment of rent. It was submitted that when the plaintiff did not accept rent the same was deposited under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter called “the Act”) for the period from 11.07.1991 to 10.07.1992. The plaintiff does not require the suit shop for starting a business of readymade garments as he has three other shops and the business can also be conducted from the double storied house of the plaintiff. The defendant nos.1 and 2 and their mother depend on the income from the suit shop and they have no other source of livelihood. The defendant no.3 is carrying on his separate business as grain merchant in the name of 'Ramesh Brothers' right from their father's time. The defendant nos.1 and 2 and their mother depend on the income from the suit shop and they have no other source of livelihood. The defendant no.3 is carrying on his separate business as grain merchant in the name of 'Ramesh Brothers' right from their father's time. The suit has been filed vexatiously and deserves to be dismissed. 2. On the pleadings of the parties, five issues were framed on 18.04.1994 by the learned trial Court. An additional issue was also framed on 03.04.1997. The plaintiff Parasram PW-1 examined himself and produced Gyan Chand PW-2 and Ashok Kumar PW-3. Rajendra Kumar DW-1, Ramesh DW-2, Satyanarayan DW-3 and Ramesh Kumar DW-4 were examined on behalf of the defendants. After hearing the parties, the learned trial Court decided issue nos.1, 4 and 6 regarding default, effect of earlier suit and partial ejectment against the plaintiff while issue nos.2 and 3 regarding bonafide personal reasonable need and comparative hardship were decided in favour of the plaintiff. Accordingly, the suit was decreed on 10.04.1996. The defendants preferred an appeal against the said judgment and decree. After hearing the parties, the Appellate Court confirmed the findings of the Trial Court and dismissed the appeal on 08.10.1998. Hence, the appellants approached this Court by filing this second appeal. 3. After hearing the parties, this appeal was admitted on 04.01.1999 and the following substantial question of law was framed:- “Whether the requirement of the plaintiff in respect of the suit premises could be held to be bonafide and reasonable when he has purchased the suit premises in occupation of the tenant particularly when his requirement was much more before the purchase”. 4. I have heard the learned Counsel for the parties carefully and gone through the record. Before averting to the aforesaid substantial question of law I deem it necessary to consider the various applications submitted by the parties during the pendency of this appeal. 5. An application was submitted on behalf of the respondent that this appeal is pending for hearing since 1988 and the suit shop measuring 10 ft. x 12 ft. situated in Jawahar Market, Kota is on rent of Rs.250/- per month while a shop measuring 9ft. X 5 ft. in the neighbourhood was rented in September, 2008 @ Rs.3000/-. Having regard to the size of the suit shop its mesne profits should be Rs.10,000/- per month. x 12 ft. situated in Jawahar Market, Kota is on rent of Rs.250/- per month while a shop measuring 9ft. X 5 ft. in the neighbourhood was rented in September, 2008 @ Rs.3000/-. Having regard to the size of the suit shop its mesne profits should be Rs.10,000/- per month. A copy of the agreement of the said shop was also enclosed. The appellant submitted a reply to the application denying the contents of the application submitted by the respondent. It was also mentioned that the respondent did not claim increase/enhancment of rent while filing suit in 1992 and the Courts below committed illegality in granting mesne profits. It has also been mentioned that another shop situated in Jawahar Market, Kota was leased out in December, 2010 on a monthly rent of Rs.300/-. Hence, the mesne profits cannot be enhanced. Photocopies of two receipts of Rs.300/- per month were also submitted. The respondent submitted two applications under Section 151 C.P.C. praying for early hearing of his application and for enhancement of mesne profits. After hearing the parties on the aforesaid applications an order was passed by this Court on 01.03.2011 that if the final hearing of the appeal cannot take place on 08.03.2011, the application for enhancement of mesne profits shall be heard and decided. The final arguments in the appeal could not be heard on 08.03.2011 and have been heard on 10.03.2011. As the appeal is being decided finally, there is no necessity of passing any order on the aforesaid applications. 6. An application under Section 151 CPC was submitted on behalf of the respondent for taking subsequent events on record. It was mentioned in the application that the appellants are not using the suit shop for about the past one year and the same is lying vacant under lock and key as they have shifted their business to some other place. Copies of report dated 02.09.2008 of JVVNL and affidavits of Hola Ram, Raj Kumar and Chandra Prakash were submitted in support of the application. The appellants did not submit any reply to the application. During the course of arguments, it was submitted on behalf of the respondent that the Court can take cognizance of subsequent events to mould the relief. Copies of report dated 02.09.2008 of JVVNL and affidavits of Hola Ram, Raj Kumar and Chandra Prakash were submitted in support of the application. The appellants did not submit any reply to the application. During the course of arguments, it was submitted on behalf of the respondent that the Court can take cognizance of subsequent events to mould the relief. It was submitted on behalf of the appellants that the application has been filed without any basis and is not at all relevant for deciding the controversy involved in the case. I have considered the rival submissions and feel that the facts mentioned in the application submitted by the respondent furnish fresh cause of action for eviction under Section 13(1)(j) of the Act which was available when the suit was filed. Hence, the facts cannot be taken into consideration in this appeal. The application is, accordingly, rejected. 7. An application under Order 41 Rule 27 CPC was filed by the appellants along with their appeal with certified copy of the Sale Deed dated 20.08.1998 executed by Kamal Kumar and Vinod Kumar in favour of Smt. Hari Bai W/o Shri Jhammat Mal and Smt. Neelam Bai W/o Parasram. It was prayed that the said document may be taken on record. The respondent did not file any reply to the said application. Another application under Order 41 Rule 27 CPC was filed on behalf of the appellants alleging that the respondent has a Shop No.223-A in Indra Market, Kota and is carrying on his own business of readymade garments under the name and style of M/s. Shanker Readymade Stores. It was further alleged that the said shop was purchased in the name of Smt.Neelam Bai (wife of the respondent) and Smt. Hari Bai (mother of the respondent). The license of the shop is in the name of Devi Das S/o Jodu Mal. It was further alleged that the respondent has an ancestral house at Kaithunipol, Kota where three shops are lying vacant. The brother of the respondent, namely, Kishore Kumar, is running his business in the name and style of M/s. Jai Shiv Vastra Bhandar. The business of the respondent has become well established in the intervening period of 17 years. Photographs, copies of Registration Certificates and Sale Deeds were submitted with the application. The respondent did not file any reply to this application also. 8. The business of the respondent has become well established in the intervening period of 17 years. Photographs, copies of Registration Certificates and Sale Deeds were submitted with the application. The respondent did not file any reply to this application also. 8. I have heard the learned Counsel for the parties on the aforesaid applications. 9. Admittedly, the documents produced with them were not submitted by the appellants in the Courts below though many of those documents came into existence when the matter was before those Courts. Thus, sub-clause (a) and (aa) of Order 41 Rule 27(1) CPC are not applicable and the only provision which can be availed by the appellants is Order 41 Rule 27(1) (b) as has been held in Mahaveer Singh vs. Naresh Chandra reported at AIR 2001 Supreme Court 134. The expression “to enable it to pronounce judgment” has been the subject of several decisions including Syed Abdul Khader vs. Rami Reddy, AIR 1979 SC 553 , wherein it was held that when the appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the Court delivering it. It is only a lacuna in the evidence that will empower the Court to admit additional evidence............. But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words “or for any other substantial cause” must be read with the word “requires”, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate Court requires additional evidence, that this rule would apply. 10. I have carefully considered the facts of this appeal as well as facts mentioned in the aforesaid applications in the light of the above proposition of law. The documents sought to be produced by the appellants relate to the facts mentioned in the written statement and memorandum of appeal of First Appellate Court. The document produced with the first application was in existence while the first appeal was pending. The documents submitted with the second application are not relevant for deciding the substantial question of law framed in this appeal. The document produced with the first application was in existence while the first appeal was pending. The documents submitted with the second application are not relevant for deciding the substantial question of law framed in this appeal. The rule is not intended to give a party a second opportunity of proving his case but to supply a defect in the existing evidence on record. Hence, there is no justification for allowing applications as the documents are not required by this Court for deciding this appeal. 11. So far as the substantial question of law which has been framed in this appeal is concerned, it has been submitted on behalf of the appellants that the requirement of the respondent cannot be considered as bonafide because he purchased the shop which was under the tenancy of the father of the appellants. If the respondent genuinely required a shop for establishing his business, he should have purchased a vacant shop so that he could have started his business instantaneously. The learned Counsel for the respondent has submitted that both the learned Courts below after detailed discussion of the evidence concurrently held that the suit shop is a bonafide and reasonable requirement for personal use of the respondent and he will face greater hardship if the shop is not vacated. Suffice it to state that there is no dispute between the parties that the father of the appellant was a tenant in the suit shop when the respondent purchased the same. 12. I have carefully considered the above submissions. There is no provision of law laying down that if a person purchases any property which is under tenancy with a third party, it should be presumed that he does not need that property for his personal use. The aforesaid substantial question of law is not res integra now as it was considered by this Court earlier in the case of Bastichand Bhansali vs. Dharamvir Kalia reported at AIR 1989 Rajasthan 135 = 1989(1) RLW 103. It has been held in the aforesaid case as under: “A shelter with a roof on his head and pursuit of happiness, subject to his means, is the normal and ordinary desire of a human being. Apart from that it is legal and statutory right of a person to actually possess the property owned by him. It has been held in the aforesaid case as under: “A shelter with a roof on his head and pursuit of happiness, subject to his means, is the normal and ordinary desire of a human being. Apart from that it is legal and statutory right of a person to actually possess the property owned by him. It would be purely against all logic to ask a landlord owner to opt for rental premises instead of his own building. There is no rule of law that the landlord can never get the occupying tenant vacated from a demised premises which the landlord plaintiff purchased with intention to live therein and more so when it is the only property of a plaintiff-landlord. Just as a tenant can be ejected under S.13(1)(i) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 on the ground that the tenant has built or acquired vacant possession or had been allotted a suitable residence, a landlord can also very well eject the tenant on the ground that he has purchased the property for his own use and he cannot be compelled to live in rented premises for ever. It was never the intention behind the enactment of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 that a landlord should be disentitled to occupy his own house and continue to live in a rented house merely because the premises at the time of his purchasing or acquiring the same had been rented out by its previous landlord”. After considering earlier judgments, this Court concluded “where a landlord living in a rented house and also carrying on his profession in a rented room, purchases a house of his own and wants to leave the rented house and to shift with his family in his own house for residence or/and professional purpose, it would amount in law to reasonable and bona fide requirement of the demised premises by him unless the tenant proves mala fides.” 13. This Court in the case of Jaswant Raj and others vs. Bata India Ltd. reported at 1997 (2) WLC (Rajasthan) 115 = RLW 1997(1) Raj. This Court in the case of Jaswant Raj and others vs. Bata India Ltd. reported at 1997 (2) WLC (Rajasthan) 115 = RLW 1997(1) Raj. 322 after considering the cases of Heera Lal vs. Panna Lal reported at 1974 WLN (UC) 365 and Om Prakash vs. Bhagwan Das reported at 1986 (2) UJ (SC) 287 held that if a landlord is doing business in a rented shop, then his desire to start business in his own shop cannot be said to be inspired by dishonest motive, but, on the contrary, it is the most natural human desire to start a business in his own shop. Therefore, in natural circumstances the court must proceed on the presumption that such desire is an honest and bonafide desire. Further, there is a check on such desire of landlord under Section 15 of the Act which clearly provides that if a landlord obtains a decree for eviction of any premises against a tenant on grounds of his reasonable and bonafide necessity, but fails to use the premises for said purpose for which such eviction has been passed within two months of obtaining possession thereof, or lets the whole or any part thereof to any person other than the evicted tenant, the court which passed the decree may, on the application of the evicted tenant, place him in possession of the premises. There is nothing on record to show that the respondent purchased the suit shop with mala fides and ulterior motive. Hence, the need of the plaintiff has to be held as bonafide and reasonable irrespective of the fact that the shop was in the tenancy of the father of the appellants. 14. The learned Counsel for the appellants submitted that the respondent has alternative accommodation to run his business of readymade garments while the appellants have no other shop for shifting their business. He has also submitted that the suit having been filed before expiry of five years from the date of purchase of the shop by the plaintiff was barred under Section 14(3) of the Act. The learned counsel for the respondent has submitted that the first contention is covered under issue no.3 which has been concurrently decided in favour of the respondent by both the learned lower Courts. Learned Counsel for the respondent relying upon Guman Mal & Ors. vs. Babulal reported at RLW 2009(3) Raj. The learned counsel for the respondent has submitted that the first contention is covered under issue no.3 which has been concurrently decided in favour of the respondent by both the learned lower Courts. Learned Counsel for the respondent relying upon Guman Mal & Ors. vs. Babulal reported at RLW 2009(3) Raj. 2502 submitted that provisions of Section 14(3) of the Act are not attracted in this case. 15. I have considered the rival submissions. 16. So far as first contention is concerned, it will suffice to mention that it is only an indirect way to assail the concurrent finding on issue no.3 which is not permissible. As regards applicability of Section 14(3) of the Act, it is to be noted that this plea was not taken by the appellants in their written statement. From the evidence on record, it is not proved that the suit was filed within five years from the date of commencement of tenancy of the shop in favour of father of the appellants. Hence, in view of the principles of law laid down in the case of Guman Mal and Others vs. Babulal (supra) the appellants cannot get any advantage of the purchase of the suit shop by the respondent on 04.06.1991. I do not feel that in the circumstances this court should exercise its power under proviso of Section 100(5) C.P.C. for framing any additional substantial question of law and decide the same. 17. In view of the aforesaid discussion, I hold that the concurrent findings of the Courts below regarding bonafide and reasonable need for the shop by the respondent as well as comparative hardship are perfectly legal according to the facts and circumstances available on record and don't require any interference. Accordingly, the appeal is dismissed with costs throughout.